State v. Ipsen

In determining whether an individual intended to abandon property, a court will weigh: (1) if defendant was separated from the property because of illegal police intrusion, State v. Bernabo, 224 Or App 379, 387 (2008); (2) if defendant left the property in a public area, id.; (3) if defendant intentionally hid the property, id. at 388; (4) if defendant left the property under circumstances where someone will likely inspect it upon discovery, State v. Belcher, 89 Or App 401, 404 (1988); (5) if defendant placed the property in plain view, State v. Brown, 348 Or 293, 300 (2010); and (6) if defendant gave up his right to "control the disposition of the property." id. at 304.

Defendant appealed from a judgment of conviction for eight counts of second-degree invasion of personal privacy, in addition to two counts of attempted second-degree invasion of personal privacy. ORS 163.700. Defendant assigned error to the trial court's denial of his motion to suppress. On appeal, Defendant argued that the warrantless search was “not justified” since law enforcement had no subjective reason to assume that the device was abandoned, nor would it have been objectively reasonable for them to assume so. In response, State argued that leaving a device in an area open to the general public constituted abandonment, and therefore Defendant relinquished his constitutional right to privacy in the device. In determining whether an individual intended to abandon property, a court will weigh: (1) if defendant was separated from the property because of illegal police intrusion, State v. Bernabo, 224 Or App 379, 387 (2008); (2) if defendant left the property in a public area, id.; (3) if defendant intentionally hid the property, id. at 388; (4) if defendant left the property under circumstances where someone will likely inspect it upon discovery, State v. Belcher, 89 Or App 401, 404 (1988); (5) if defendant placed the property in plain view, State v. Brown, 348 Or 293, 300 (2010); and (6) if defendant gave up his right to "control the disposition of the property." id. at 304. The Court of Appeals determined that Defendant's voluntary act of placing the device and leaving it, albeit temporarily, in an area where it was likely to be found, resulted in the loss of his "reasonable expectation of privacy in the device." Accordingly, the Court held that the trial court properly denied Defendant's motion to suppress. Affirmed.